New RIPA codes fail to calm industry fears

The government's holiday release of new draft codes of practice for the Regulation of Investigatory Powers Act has led to...

The government's holiday release of new draft codes of practice for the Regulation of Investigatory Powers Act has led to repeated claims that the new rules will harm UK e-commerce.

The timing of the move, at the height of the holiday period, has concerned business organisations, politicians and lobbying groups.

Many believe the new codes on government access to communications data do little to allay fears about the RIP Act. Areas of concern include cost, privacy for both businesses and individuals, and the overall power of the authorities.

The Confederation of British Industry is a committed opponent of Section 12 of the RIP Act, which requires telecommunications companies to bear the cost of interception equipment that the government has demanded.

Senior e-business policy adviser Pamela Taylor said, "The RIP Act requires businesses to pay for installing a capability that has no business service and merely serves government. This amounts to a huge financial drain when you consider the cost of installation and running the service."

Will Roebuck, executive for legal affairs at the e.centre, a leading umbrella organisation for e-commerce companies, told CW360 that he was "very concerned" that cost issues of interception have not been addressed.

Roebuck described the government's pledge of £20m to offset initial costs to communication service providers (CSPs) as "a token gesture".

He added, "The government clearly has little understanding of technology and the e-business market, and these proposals are likely to further deter CSPs from investing in the UK.

"On the contrary, UK businesses are likely to see more CSPs relocating abroad and higher costs for users, which does not bode well for the government's pledge to promote the UK as 'the best place to do e-business'.

"An immediate government statement on a costs formula allowing a CSP to implement and maintain an interception capability remains a critical priority."

One of the key problems in the new code is the issue of "proportionality" - proving that a government body's need for access to data is proportional to the cost of accessing it and the loss of privacy this entails.

According to Caspar Bowden, director of the Foundation for Information Policy Research, the draft code of practice does little to address this issue.

"Proportionality has always been a chief worry with the RIP Act. This is covered in the new draft code of practice for accessing communications data but the worrying news is that the authority seeking to access the data will be able to decide for itself if the potential benefit for accessing the data is proportionate to the act of accessing it," said Bowden.

"This means an authority is judge and jury for its own case and it also means that different authorities could have wildly different ideas of what is proportionate. We still do not have a legal theory of proportionality."

Liberal Democrats are calling for judicial scrutiny of any attempt to access communications data.

The Liberal Democrat spokesman for IT, Richard Allen said, "To ensure proportionality we must have the safeguards defined in law. We are very concerned about agencies going on trawling expeditions and not sticking to specific needs.

"The best solution would be to have judges decide if the need is proportionate, as they do with search warrants. This way we would have a proper consistent overview of the situation."

Consultation on the draft code of practice will end on 2 November.

Further information
Copies of the code are available from the Home Office Web site at http://www.homeoffice.gov.uk/ripa/pdccpc.htm

Any responses should be sent to:
RIPA Implementation Team
Room 735
Home Office
50 Queen Anne's Gate
London SW1H 9AT

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